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DWI Dude FacebookChapter 2 - Driving While Intoxicated Offenses
§ 2:1 Driving while intoxicated (DWI) offenses—Introduction
In the ever changing (for the worse) battle field of the “war on drunk driving” the driving while intoxicated (DWI) trial lawyer must constantly study, read and prepare for what is just around the next corner. This book will attempt to make less complicated what is becoming the most complicated area in the criminal courtroom. You will quickly see that there is no simplicity to the courtroom interpretation of the area of law known as Driving While Intoxicated.
In my practice I have leaned heavily on a number of National and Texas DWI specialists. This includes not only a core group of DWI attorneys nation wide but also a growing number of experts in the various fields associated with the issues of Intoxication, Pharmacology, Physiology, Psychology, Motor Skills, Human Physiology, Toxicology, Respiratory, Opthalmology, and the list goes on. There are a number of workshops and seminars that afford the DWI attorney the opportunity to receive certification in the Standardized Field Sobriety Tests (SFST), Breath Testing Devices, Drug Recognition Evaluations and other related areas of this field.
The National College for DUI Defense (NCDD) is the Mother Ship for any attorney that desires to become an effective DWI trial lawyer. The NCDD maintains an email list server where the individual attorney “joins” a law firm of over 650 DWI attorneys. The list server links the practitioner to a core of like thinking brethren who monitor the emails in order to assist with advice, information, trail strategies, proven trail tactics and friendships. The NCDD has a data base library with cutting edge treatises, seminar handouts, studies and other written material that dwarfs what a sole practitioner could maintain on his own.
Absorbing the amount of information available can be daunting as the task of staying abreast of the ever changing case laws interpretations we face. In Texas, established case law can be modified or totally reversed by the reasoning that the sitting Court of Criminal Appeals didn’t write the earlier holding. One must constantly think ahead when precedent can so easily be re-written. It is good to remember the words of Georgia DWI guru, William “Bubba” Head, as he quotes his father, Louis B. Head, 1915 - 1973 “if it was easy, everybody would be doing it”.
Thus, we begin with a review of the applicable statutory law faced by the Texas trial lawyers. Substantive changes to this area of the law occur annually as the pressure mounts on legislature and judges to stop what is referred to as “the carnage” on our highways. None of us supports drunk driving and we are not so foolish as to believe intoxicated persons should be operating motor vehicles on streets, highways and other public or private areas. Because of this shared belief the pressure mounts from Mothers Against Drunk Drivers (MADD), Students Against Destructive Decisions (SADD), the National Highway Traffic Safety Administration (NHTSA), “victim’s rights” groups and other anti-drinking driver lobbyists.
Hopefully, this manual will provide ready access to important statutory wording and case law when the reader is in the fight during motion disputes or mid-trial arguments. This manual hopes to be your “back up” when the Judge is leaning towards you but needs that little something extra to fade the heat of the MADD crowd that so boldly sits in and “scores” how judges rule in DWI cases. It will also attempt to diagram, teach and coach trial strategies to attorneys brave enough to try these tough criminal cases.
This manual is structured in a manner that allows for easy access to case law, legal reasoning and practice nuggets for office reading as well as in-court demands. The initial chapters deal with Texas DWI law and other commonly occurring traffic offenses which justify the traffic stop. I have borrowed liberally from friends and mentors in making suggestions that the reader might find helpful. Case analysis and discussion will be located throughout the remaining chapters of the manual.
The overriding concern throughout this manual is the loss of the citizen's rights apparent in the DWI area of law and the Texas Code of Criminal Procedures. Even in today’s “post-911” atmosphere it is frightening to see the lack of an equal playing field in the area of DWI law. It seems as if judges go out of their way to rule against the accused in every “harmless” ruling at the bar. As every trial lawyer knows, enough harmless error can so severely undercut your trial strategy that you resemble a blind man helplessly looking groping in the dark. What the courts seem to forget is that the endless barrage of permitted error on behalf of the prosecution starts piling up and the cumulative effect is exponentially greater than the sum of the individual errors. Unfortunately, appeals have only helped to create bad case law; costing the defense bar what few weapons we could once count upon. Statutory enactments have created what one noted scholar in this area calls “The DUI Exception to the Constitution”. Lawrence Taylor's excellent treatment of this subject is a must read.
§ 2:2 DWI basic law—Generally
The basic driving while intoxicated (DWI) law is set forth in Texas Penal Code 49.04 which states that “(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”
Texas Courts have differed on the elements of what constitutes a misdemeanor Texas DWI under this statute. In Galvan v. State, the Court held the elements are (1) a person (2) is intoxicated (3) while operating a motor vehicle (4) in a public place.
In State v. Barbernell, the Court held that “[t]he specific elements of misdemeanor DWI are: (1) a person (2) is intoxicated (3) while operating (4) a motor vehicle (5) in a public place.”
In Hamilton v. State, the First District held that “the elements of DWI are: 1) a person 2) drives or operates 3) a motor vehicle 4) in a public place 5) while intoxicated.”
In Purvis v. State, the Court held that the elements of DWI are: (1) a person; (2) is intoxicated; (3) at the time of; (4) operating; (5) a motor vehicle; (6) in a public place.
Texas Courts have specifically held that intent is not an element of this statute.
Although the wording may vary from case to case, it appears the elements of a Texas DWI are generally: 1) A person; 2) is intoxicated; 3) while operating; 4) a motor vehicle; 5) in a public place.
§ 2:3-Element 1—“A person”
A person is not defined by statute, but by common definition. There is no age requirement. Even minors who are subject to TEX. ALCO. BEV.CODE ANN. § 106.04, the DUI statute, may be concurrently guilty under to the DWI statute.
§ 2:4-Elements 2—“Is intoxicated”
Element two requires the driver was “intoxicated.” Intoxication is defined by Texas Statute 49.01(2) as:
- not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
- having an alcohol concentration of 0.08 or more.
Thus, the State has the option of proving intoxication by either showing the driver lacked the normal use of his mental or physical faculties because of the introduction of alcohol or other substance, or by having an alcohol concentration of 0.08 or more.
“Normal use” is an objective standard, not subjective standard for the jury or fact-finder. That is, the defendant’s normal use of his mental and physical faculties while sober shall not be compared to his normal use of such faculties when he is intoxicated, but shall be compared to that of a normal person.
Under the “per se” standard of intoxication, the prosecution state may prove that the defendant is at or above the proscribed legal BAC limit.
Texas Courts have held that the intoxication causing substance is not an element of a Texas DWI.
However, [a] defendant cannot be found to be intoxicated if he lacks the normal use of mental or physical faculties for a different reason, such as disability, illness, fatigue, stress, or clumsiness.”
§ 2:5 --Element 3—“While operating”
The defendant must be driving or in actual physical control of a motor vehicle in order to support a charge of DWI; however, the defendant is not required to have actually committed any unsafe acts. Furthermore, the State is not required to prove that any person actually saw the defendant operate the motor vehicle if there is sufficient circumstantial evidence to support a conviction. While there is no statutory definition of “operate”, the plain meaning of the word requires effort, or the doing of something by the operator, for purposes of the statutory prohibition against “operating” a motor vehicle while intoxicated.
Operating is not defined by the Texas DWI statute. Courts have defined operating as a defendant, “…takes action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Put another way, it “requires ‘effort, the doing of something by the operator.” This, the Court explained requires evidence that “the defendant performed an act to affect the functioning of the vehicle.”
In Barton the defendant was found in his vehicle “with its engine idling and the transmission in neutral,” on the roadway. The defendant “was sitting behind the wheel, asleep, with one foot on the brake and the other foot on the clutch.” There was no one else around, and the defendant was found to be intoxicated. The defendant was convicted and appealed. On appeal he argued that the evidence was insufficient to show he was operating his vehicle while intoxicated. The Court of Appeals, applying Geesa v. State, held the evidence was sufficient to prove the defendant operated his vehicle while intoxicated.
In Denton v. State, the defendant broke into a truck, started the ignition, revved the accelerator, but the truck had not sufficiently warmed up to allow it to move. This was sufficient evidence to show that defendant took action to affect functioning of the vehicle in a manner that would enable vehicle’s use was and to prove that defendant “operated” the vehicle within the meaning of the statute. Accord, Chamberlain v. State, 163 Tex.Crim. 529, 294 S.W.2d 719 (1956)(steering of automobile by defendant as it moved upon a highway while being pushed by another automobile, with its engine not running, was sufficient to constitute “driving and operating” of such automobile within statute prohibiting the driving or operating of a motor vehicle while under the influence of an intoxicating liquor); Partee v. Texas Department of Public Safety, 2007 WL 4258628 (2007)(after receiving call that truck was weaving, officer was dispatched to area, shortly thereafter, he encountered truck near location on highway where pickup was reported to be weaving, motorist's pickup matched description of weaving vehicle and it was found to be straddling shoulder and roadside ditch, motorist was alone and asleep behind steering wheel with his foot on brake, his keys were in ignition with engine running, brake lights illuminated, and gearshift engaged); Pop v. State, 802 S.W. 2d 418 (Tex.App.-Austin (1991))(sufficient evidence that motorist found sleeping behind wheel of vehicle sitting in roadway with engine running and lights on drove vehicle while intoxicated); Edwards v. State, 2003 WL 22248850 (2003)(officer had probable cause to arrest defendant without a warrant for driving while intoxicated (DWI), although officer did not see defendant actually driving vehicle, as officer observed defendant operating vehicle; defendant was behind wheel of running vehicle, he repeatedly shifted gears between forward and reverse and accelerated in an attempt to dislodge vehicle from dirt pile); and Vasquez v. State, 2007 WL 2417373 (2007)(evidence of operation legally and factually sufficient where SUV's motor was running, gearshift was in the “drive position,” lights were on, right front tire was resting against a public street curb, and the driver was asleep at the wheel).
It is important to understand that when reviewing a verdict the Texas Courts apply the reasoning announced in Geesa. Prior to the Geesa ruling Texas Courts applied the “reasonable hypothesis” examination on review, which was announced in Griffin v. State. Under the Griffin form of review, in a circumstantial case, the State was required to exclude every reasonable hypothesis other than guilt in order to meet their burden of proof. Under Geesa, however, the reviewing Court now reviews both circumstantial and direct evidence equally, then reviews whether the evidence was sufficient to warrant a finding of guilt. The state is not required to eliminate all reasonable hypothesis other than guilt to meet their burden of proof.
The Geesa Court also required a proscribed jury instruction on the definition of reasonable doubt. In Paulson the Court overruled the requirement of reading that definition, but stated that it is not reversible error if both the State and Defendant consented to such reading.
What appears certain now is that reviewing Courts look at all of the evidence, and inferences drawn from that evidence equally, and evaluates whether such evidence is sufficient to convict by evaluating it in light most favorable to the verdict.
Applying the reasoning of Paulson, “[A]n unescorted female sitting alone in a car at 12:30 a.m. in a public parking lot,” is sufficient basis for finding that a defendant operated her vehicle when intoxicated where there were no alcoholic containers in or near the vehicle indicating the defendant became intoxicated after parking her vehicle.
While not many post-Paulson cases define operating, some older cases provide some illumination on the bounds of definition. Counsel is advised to consider these holdings in light of the Paulson principle.
In Chamberlain v. State, a defendant was found guilty of DWI by sitting in the driver’s seat and steering an automobile that was not turned on, while it was pushed by another vehicle.
One Texas case held that a defendant could be found guilty of DWI by either allowing someone he knew was intoxicated to drive, or by driving intoxicated himself.
Even evidence that would normally be legally insufficient to support probable cause to arrest will suffice to sustain a conviction at the Texas Court of Appeals. However, circumstantial evidence should be tested by the same ultimate standard for review as for direct evidence, in which evidence is viewed in the light most favorable to the verdict and reviewed to determine whether any rational truer of fact could have found the essential elements of a crime beyond reasonable doubt. For example, in Denton v. State, evidence that defendant took action to affect functioning of vehicle in manner that would enable vehicle's use was sufficient to prove that defendant “operated” vehicle within meaning of statute proscribing unauthorized use of motor vehicle; defendant broke into truck, started ignition and revved accelerator, but truck had not sufficiently warmed up to allow it to move. Accord, Dickson v. State, 642 S.W.2d 185 (Tex.App.-Houston (1982))(appellant was seen exiting the driver’s side door of a stolen van immediately after it came to a stop; this evidence support an inference that defendant was driving and therefore operating the van).
In order to convict a person for DWI, there must be evidence beyond a reasonable doubt not only that the defendant has been driving a motor vehicle and was intoxicated when the police arrive, but that the defendant had been intoxicated while driving the vehicle. According to the Texas Penal Code § 49.01(2), “intoxicated” can mean (a) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of tow or more of those substances, or any other substances into the body; or (b) having an alcohol concentration of 0.08 or more. The definitions contained in statute governing offense of DWI sets forth alternative means by which the State may prove intoxication, rather than alternate means of committing the offense. The impairment theory of intoxication, for purposes of establishing the offense of DWI, requires proof of not having the normal use of mental or physical faculties while the per se meaning of intoxication requires the defendant having an alcohol concentration of 0.08 or more.
Recent case law has opened the door for defense counsel to challenge (at a pre-trial motion hearing) the arresting officer's decision to make a custodial arrest for DWI. Hence, if you have the right set of facts and make an excellent record, you have a better chance of winning the client's case on “insufficient evidence of impairment” grounds, relating to the arrest decision, than in a post-conviction appeal.
§ 2:6 --Element 4—“A motor vehicle”
Under subsection three of Texas Statute 49.01 a “[m]otor vehicle has the meaning assigned by Section 32.34 (a), which states:
“(2) ‘Motor vehicle means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.”
A bulldozer has been found to be a motor vehicle within the meaning of this statute. However, the term does not include a vehicle, machine, tractor, trailer, or semi-trailer operated exclusively on a rail.
§ 2:7 --Element 5—“Public place”
In a Driving While Intoxicated prosecution, the government must prove beyond a reasonable doubt that the accused operated a motor vehicle in a public place. The “public place” element is conceded to the state in most DWI trials given that most arrests occur in a setting where there is little factual dispute regarding the definition of a public place. However, the Texas courts have had occasion to discuss what constitutes a public place for the purpose of DWI and this chapter seeks to help the DWI practitioner discover what situations will give rise to a legitimate issue regarding this element.
The most important thing to remember when analyzing this issue is that if it is possible for the courts to construe the facts to include a public place, they will defer to the state. A “public place” is defined by Texas Penal Code § 1.07(a)(40) as:
“[A]ny place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”
The most important part of this definition is the phrase “but is not limited to”. Invariably, most courts will find that phrase to encompass nearly every square inch of geographical real estate between the Red River and the Rio Grande. Texas Courts have held, however, that the statutory list is demonstrative, not exclusive, of the places that may be public for the purposes of this statute. The general rule for determining whether a location is a public place is whether the public has access. Any place the public has access to is a public place.
Thus, a gated community where anyone can access through the right set of circumstances.
A hotel parking lot with security has been found to be a public place where the public need not request permission to enter the property, and the rooms of the hotel were open to the public.
A marina in a public park where the public has access at will is a public place.
A closed city park is a public place where there were no gates or barriers preventing the public from accessing it.
An highway entrance ramp is a public place.
An Air Force base is a public place within the meaning of this statute. A parking lot of a condominium complex has been held as a public place.
However, one case specifically held that a defendant could not have been said to operated his vehicle in a public place where his vehicle was found completely off the roadway, with no skid marks or tidemarks indicating the vehicle was driven from the roadway to the resting position, despite evidence that suggested the vehicle struck a stop sign on the roadway.
An unpaved driveway to a residence approximately one-fourth mile from county road was not a public place.
§ 2:8 -- --Operation on public roadways
An overwhelming majority of DWI cases arise out of alleged traffic violations that occur on public roadways. As previously discussed, the definition of a public place is broad and sweeping. A highway is defined as “the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular traffic”. Previous chapters have discussed the necessity of reasonable suspicion in order for a police officer to affect a traffic stop. State v. Ballman found no reasonable suspicion due to the alleged traffic violation occurring somewhere other than a public roadway. Ballman was pulled over for failing to signal leaving the parking lot of a Central Market in violation of Section 545.104 of the Texas Transportation Code. That section requires the use of a blinker to signal the intent of a turn for at least 100 feet prior to its execution. The Fort Worth Court of Appeals held that Ballman’s failure to use his turn signal to indicate his intention to make a right hand turn from a private parking lot onto a public roadway did not manifest a traffic code violation for failure to signal, and therefore, the officer lacked the required reasonable suspicion to stop Ballman’s vehicle. Accordingly, when the traffic violations giving rise to the reasonable suspicion relied upon by an arresting officer do not occur on a public roadway, the resulting seizures are unlawful and any evidence obtained therefrom should be suppressed.
§ 2:9 -- --Operation on publicly accessible property
The most interesting and perplexing thing about the cases previously mentioned is that while the observed traffic violations occurred in a location not considered a public roadway, an individual could still lawfully be arrested for DWI for conduct that is occurring in the same location. Remember, that DWI is defined as “operating a motor vehicle in a public place while intoxicated”, not “operating a motor vehicle on a public highway while intoxicated”. In State v. Nailor, the Court held that a hotel parking lot in which motorist was driving was “public place” for purposes of driving while intoxicated (DWI) statute given the evidence before trial court that the parking lot was open to public 24 hours a day and was considered public place. Another case held that a gated community where the accused had been driving qualified as a public place despite the presence of a security guard limiting access into the community. The Court took this position after determining that all persons could gain access to the community with the right set of facts and circumstances. All these cases demonstrate courts’ deferential interpretation of the legislative definition of “public place” in DWI cases.
§ 2:10 -- --Operation on private property
The operation of a motor vehicle on private property is a valid defense in Texas. The obvious difficulty with this defense is that the legislature has defined a public place so broadly that the little to no difficulty holding that most instances of conduct occurred in a public place. Remember that the general rule for determining whether a location is a public place is whether the public has access. The ease of accessibility for the general public will be the court’s analysis in most instances. In Fowler v. State, the court stated that an unpaved driveway of a rural residence located about a quarter mile from a county road in an isolated and secluded area of the county was not a public place within the meaning of the DWI statute. This case demonstrates the level of obscurity of one’s location necessary for a court to hold that an accused is not in a public place.
§ 2:11 -- --Conclusion
Finally, although not a likely issue in most DWI cases, there is the possibility that a question may be raised to the validity of the arrest for lack of probable cause, depending on where the accused is alleged to have committed the traffic violation that generated the traffic stop. Further, and in even more rare cases, the government may not be able to prove beyond a reasonable doubt that the accused was operating a motor vehicle in a public place.
§ 2:12 --Culpable mental state
Texas Courts have specifically held that culpable mental state is not an element of a DWI charge.
§ 2:13 --Attempted driving while intoxicated
Texas Courts have held that attempted driving while intoxicated is not a crime under Texas law. In Strong the defendant was stopped in the middle of a road with the vehicle’s flashers on, and the vehicle in reverse. It was not clear whether the vehicle’s ignition was on when the officer arrived. The trial court found there was insufficient evidence to submit a DWI charge, but allowed the State to submit a charge of Attempted DWI to the jury. The Court of Appeals, in overturning the Trial Court, held that the attempt statute specifically requires “the person must have ‘the specific intent to commit’ the offense attempted.” Since Texas Penal Code § 49.11 specifically states that a culpable mental state is not required for a DWI conviction, it follows that the attempt statutes do not apply to the DWI statute.
§ 2:14 Driving under the influence (DUI)—Introduction
Some States have “baby” DWI charges for adult drivers that have a BAC level lower than 0.08 but Texas does not follow that line of thinking in its DWI enforcement. The DUI statute does not allow the State to file this charge against anyone that is twenty-one years of age or older. It is restricted to those persons under 21 years of age who drink any detectable amount of alcoholic beverages and drive.
This offense is a Class C misdemeanor which carries a fine only and cannot result in jail incarceration. Typically, the officer filing the charges issues a citation and releases the minor but a custody arrest is allowed by law. The minor can also be charged with the Class C offenses of Minor in Possession (MIP) and Consumption of Alcohol by a Minor (MIC).
One problem faced by defense counsel is that the officer’s major source of evidence is his sense of smell. If the officer testifies that he detected the odor of an alcoholic beverage on the breath of a minor driver a DUI can be filed. As held by the Texas Court of Criminal Appeals in Estrada v. State, the odor of an illegal substance (such as alcohol by a minor) may be a factor that police officers use in determining whether there is probable case that an offense has been or is being committed. For example, in the Texas Court of Criminal Appeals case, Smith v. State, the officer testimony that he could “smell a strong odor of alcohol” on appellant’s breath was enough to effect the appellant’s arrest.
Historically, the issue of “odor of an alcoholic beverage” is problematic for the defense attorney to overcome. The courts have little difficulty in accepting the credibility of the testifying officer when the issue of odor is addressed. This issue should not be surrendered without a fight. As soon as alcohol is consumed metabolites are formed as the alcohol begins to be digested by the human body (absorption stage). Once all the alcohol has been absorbed and the body is in the elimination stage both alcohol and metabolites are still present. When the alcohol is completely metabolized it is eliminated and only metabolites are present in the body.
The concern here is that there is no longer any alcohol present in the person’s body and they could theoretically blow a 0.00 but still be charged with DUI. Since the officer is detecting (smelling) the odor of the metabolite the driver is actually being charged with the non statutory crime of - driving after having consumed some amount of alcohol sometime earlier.
Another problem associated with the term “detectable” is that a PAS/PBT device is supposed to “detect” the presence of alcohol and generally the case will be upheld on that basis, even though the device can read false positives. There is also concern that the PBT/PAS is actually reading the presence of those metabolites mentioned above. ***see that section/chapter.
Also, consider the fact that many over the counter cough and cold medications contain alcohol. The consumption of any of these legal medications could result in the filing of DUI charges if the officer smells the odor of metabolites after the alcohol in the medication has already been eliminated from the minor’s body.
For an analysis of the problems associated with a study of the ability to smell the odor of alcoholic beverages see: Police officers’ detection of breath odors from alcohol ingestion Herbert Moskowitz a,*, Marcelline Burns a, Susan Ferguson b a Southern California Research Institute, 11914 West Washington Bl6d., Los Angeles, CA 90066, USA b Insurance Institute for Highway Safety, 1005 N. Glebe Road, Arlington, VA 22201, USA. Received 24 August 1998; accepted 4 September 1998
§ 2:15 --DUI basic law
According to the Houston Court of Appeals (14th Dist.), while the subject matters covered by the DWI and the DUI statute are similar, they are not the same. Specifically, the DWI statute covers intoxication resulting from alcohol consumption and the ingestion of drugs, whereas the DUI statute only covers alcohol consumption.
The offense of DUI does not preclude the additional filing of a DWI since the elements of the statutes are not the same. Although allowed by case law, I am unaware of any case where both charges have been filed. However, it is not unimaginable that the State could file DUI charges against a minor (under 21 years of age) after failing to obtain a guilty verdict in a DWI trial based on a single traffic stop.
It is important to remember that every person who drinks alcoholic beverages will not automatically become intoxicated. Likewise, every person who is “intoxicated,” as that term is defined in the Penal Code, can attain that state as a result of consuming alcohol, as well as other substances.
The El Paso Court of Appeals held in Rubio that:
DWI suggests a person who was driving in a public place had lost normal use of either mental or physical faculties or had a BAC of .08 or more while DUI suggests a person was driving after having consumed alcohol without requiring any determination as to the illegality of the situation.
Rubio v. State also draws the distinction between DWI and DUI and also opens the door for the filing of Reckless Driving charges discussed at the end of this section.
§ 2:16 --Elements and penalties
The elements of a DUI are not set out in the Texas Penal Code, instead, it is found in the Texas Alcoholic Beverage Code § 106.041(a). A (1) minor commits an offense if (1) the minor (2) operates (3) a motor vehicle or a water craft (4) in a public place (5) while having any detectable amount of alcohol in the minor's system.
“Any detectable amount” is not defined in Texas statutes or codes. However, according to the Fort Worth court of appeal, the word “detectable” had plain and ordinary meaning capable of being understood by a person of ordinary intelligence. As a result, any amount of alcohol in the minor’s system meets this ordinary meaning standard, regardless of blood-alcohol content.
An offense under § 106.041 is a Class C misdemeanor unless it is shown at trial that the defendant is a minor who is not a child and who was previously convicted at least twice of an offense under this section.
If it is shown that the defendant is not a child and has been previously convicted at least twice for a DUI, the offense is punishable by a fine of not less than $500 or more than $2,000; confinement in jail for a term not to exceed 180 days; or both the fine and confinement. The penalties and charges associated with DUIs is further discussed in the “Sentencing, Penalties and Consequences” chapter of this manual.
§ 2:17 --Caselaw and other resources
These cases and legal opinions support the argument that a minor can be charged with DWI and DUI in the same incident.
- senate Criminal Justice Comm., Bill Analysis, Tex. S.B. 35, 75 th Leg., R.S. (1997) (stating that the offense of DUI was intended to be separate from DWI).
- Op.Atty.Gen. 1998, LO–027 (stating that a person under the age of twenty-one may be prosecuted for the offense of driving while intoxicated under Texas Penal Code § 49.04 notwithstanding the enactment of Texas Alcoholic Beverage Code § 106.041.
- Tex. Att'y Gen. Let. Op. 98-153 (1998)(advising that minors can be prosecuted under either the DWI statute or the DUI statute).
- Findlay v. State, 9 S.W.3d 397, 399-401 (Tex.App.—Houston(14th Dist.), 1999)(stating that DWI statute and DUI statute are sufficiently different that they are not in pari materia or in irreconcilable conflict and instead allow State to prosecute underage motorist for DWI, even though both statutes cover same persons and similar subject matter, in light of fact that purpose of DWI statute to address intoxicated driving by any motorist to protect safety of travelers differs from purpose of DUI statute to address driving by minors after consumption of any alcohol in effort to prevent loss of federal highway funding).
§ 2:18 --Where can the future take us?
Not to give Texas prosecutors any ideas, but a hybrid argument of a DUI that can be utilized to charge an adult or a minor with the class B offense of Reckless Driving would be the following:
The driver (a minor or an adult) consumes an alcoholic beverage and commits a traffic violation and under the totality of the circumstances it elevates to Reckless Driving due to the combination of an unsafe traffic violation with driving after drinking. This results in the DUI raising from a class C to a class B misdemeanor (Reckless Driving) for a minor. For an adult there is no class C offense so it goes from no DWI violation to a class B arrest for Reckless Driving.
